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The inclusion of public interest considerations in competition law legislation has been controversial, dividing policy makers and economists alike. Debate has focused on the practical application of these public interest concerns when a merger is proposed, or when prohibited conduct is implicated. The uncertainty involved has had to be addressed by the competition authorities in recent years when dealing with high profile mergers and excessive pricing cases. This has necessitated development in somewhat unchartered legal terrain: the incorporation into competition policy of traditionally non-competition objectives. The traditional purpose of competition law has primarily been protecting and enhancing consumer welfare. Attempting to reconcile this objective with public interest considerations, which are now statutorily enshrined, presents significant challenges. However, South Africa's pressing economic redistributive justice needs provided compelling motivation for the legislature including public interest considerations in competition law, and authorities must remain cognizant of this. This paper critically considers whether it is appropriate for competition authorities to address welfare and public interest concerns, by analysing significant merger and prohibited conduct cases involving public interest considerations. A comparison into international approaches and trends in including public interest factors in competition control serves to provide global context. Furthermore, this paper interrogates the legitimacy of intervening in the public interest, whilst examining the tension between efficiency and equity.

<p>It can be read from the EC treaty that the European Community shall have as its task to promote competition throughout the Community. Competition law exists to ensure competition in a free market, as competition is believed to bring such benefits as efficiency, low prices and innovation. Article 82 EC is meant to promote competition and is also meant to prevent anti-competitive behaviour. For Article 82 EC to be applicable several requisites must be met and one of them is that the undertaking must be in a dominant position. It is no easy task to establish dominance and there are no clear guidelines as how to do so.</p><p>In the United Brands case the ECJ provided a definition of dominance stating that dominance was economic strength enjoyed by an undertaking which enabled it to prevent effective competition and to behave to an appreciable extent independently. Subsequently, in Hoffman La Roche it was stated that some competition does not prevent the undertaking from being dominant.</p><p>One important element in the assessment of dominance is the market share data. However, mere numbers cannot determine dominance and other factors must be taken into account. It is the effect on the market the undertaking has that is of interest and not merely its market share. Such factors may strengthen or weaken the undertaking’s market position. Important to note is that there is no exhaustive list of factors the Community authorities could take into consideration when assessing dominance.</p><p>Through the years, there has been much criticism directed against the application of Article 82 EC and several commentators have argued that it is applied too arbitrary, and that there is no formalistic approach. The Commission has acknowledged the fact that the current case law under Article 82 EC is controversial and is currently working on a review of the provision. It is however doubtful whether the review will have much impact considering that the Commission is bound by existing case law, but possibly it could encourage a development in the future.</p>

It can be read from the EC treaty that the European Community shall have as its task to promote competition throughout the Community. Competition law exists to ensure competition in a free market, as competition is believed to bring such benefits as efficiency, low prices and innovation. Article 82 EC is meant to promote competition and is also meant to prevent anti-competitive behaviour. For Article 82 EC to be applicable several requisites must be met and one of them is that the undertaking must be in a dominant position. It is no easy task to establish dominance and there are no clear guidelines as how to do so. In the United Brands case the ECJ provided a definition of dominance stating that dominance was economic strength enjoyed by an undertaking which enabled it to prevent effective competition and to behave to an appreciable extent independently. Subsequently, in Hoffman La Roche it was stated that some competition does not prevent the undertaking from being dominant. One important element in the assessment of dominance is the market share data. However, mere numbers cannot determine dominance and other factors must be taken into account. It is the effect on the market the undertaking has that is of interest and not merely its market share. Such factors may strengthen or weaken the undertaking’s market position. Important to note is that there is no exhaustive list of factors the Community authorities could take into consideration when assessing dominance. Through the years, there has been much criticism directed against the application of Article 82 EC and several commentators have argued that it is applied too arbitrary, and that there is no formalistic approach. The Commission has acknowledged the fact that the current case law under Article 82 EC is controversial and is currently working on a review of the provision. It is however doubtful whether the review will have much impact considering that the Commission is bound by existing case law, but possibly it could encourage a development in the future.

No description available.

Competition law constitutes part of broader policies. Thus, in addition to the pursuit of efficiency, competition law expresses non-efficiency concerns. The paper will explore the theoretical perspectives as to the objectives of competition law; analyze the practical aspects that implementation of non-efficiency objectives entail; and suggest a framework for implementation of non-efficiency objectives within competition law. As will be argued, non-efficiency objectives should – to varying degrees along the axes of time, place and circumstances - play a meaningful role in competition analysis. The primary assertion of the paper will be that competition law ought to consistently strive to outline the contours of those axes. Such contours should be drawn primarily on the basis of the potential adverse effects of the restrictive trade practice upon efficiency, as compared to the potential public benefit that may stem from the practice, as well as upon the circumstances that prevail within the jurisdiction.

Competition law constitutes part of broader policies. Thus, in addition to the pursuit of efficiency, competition law expresses non-efficiency concerns. The paper will explore the theoretical perspectives as to the objectives of competition law; analyze the practical aspects that implementation of non-efficiency objectives entail; and suggest a framework for implementation of non-efficiency objectives within competition law. As will be argued, non-efficiency objectives should – to varying degrees along the axes of time, place and circumstances - play a meaningful role in competition analysis. The primary assertion of the paper will be that competition law ought to consistently strive to outline the contours of those axes. Such contours should be drawn primarily on the basis of the potential adverse effects of the restrictive trade practice upon efficiency, as compared to the potential public benefit that may stem from the practice, as well as upon the circumstances that prevail within the jurisdiction.

Syftet med konkurrenslagstiftningen är att främja konkurrensen marknadsaktörer emellan. En effektiv konkurrens bidrar till en bättre resursanvändning i samhället, medan en otillräcklig konkurrens ledertill onödigt stora kostnader. Sedan inträdet i den Europeiska Unionen (EU) 1995 har Sverige ett dubbelt rättssystem för konkurrensrätt, den EU-rättsliga lagstiftningen är inte bara vägledande utan i materiellt hänseende även bindande. En grundläggande bestämmelse inom konkurrensrätten är förbudet mot konkurrensbegränsande samarbete, detta regleras i 2:1 Konkurrenslag 2008:579 (KL) och i artikel 101.1 Lissabonfördraget (EUF-fördraget). Ett sådant samarbete innebär att två eller flera företag går samman och avtalar om exempelvis pris eller marknadsuppdelning och är föremål för uppsatsens undersökning. Uppsatsen syftar till att undersöka viss problematik som uppstår vid tillämpningen av denna lagstiftning. Ett parallellt marknadsuppträdande kan ha många grunder, men det kan också indikera att en samordning föreligger. Det parallella uppträdandet i sig är inte förbjudet, förutom när det grundar sig i ett samordnat förfarande. Det är dock inte alltid enkelt att fastställa när så är fallet och det är vad uppsatsen undersöker. Ur den EU-rättsliga praxisen framkommer tre kumulativa rekvisit som slår fast när ett samordnat förfarande anses föreligga. En allmängiltig rättsvetenskaplig princip är att den som påstår någonting också ska styrka detta. Samma princip gäller i lagstiftningenom konkurrensbegränsande samarbeten, där dock viss oklarhet råder kring bevisbördans placering. Uppsatsen försöker fastställa när bevisbördan förflyttas från den som påstår att en överträdelse skett (ofta en konkurrensvårdande myndighet) till företagen. Det som framkommer är att det finns tre olika presumtionsregler för bevisbördans placering. Två av dessa rör samordnade förfaranden medan en rör avtal. Dessa presumtionsregler föreskriver när bevisbördan hamnar hos företagen och vad dessa då måste bevisa. Till sist undersöks tre stora, svenska kartellmål. Syftet med framställningen är att undersöka hur det svenska rättsväsendet följer och tolkar det som framkommit i EU-rätten. Det ska råda full konvergens mellan de materiella reglerna. Marknadsdomstolen (MD) uttalar i ett av målen att de EU-rättsliga processrättsliga reglerna är vägledande men att dessa måste följas för en enhetlig tillämpning av den materiella lagstiftningen. MD väljer att tolka och använda sig av EU-rätten i samtliga undersökta rättsfall, vissa brister kan dock skådas och nya frågeställningar uppkommer. / The aim of competition law is to support competition between operators. An effective competition will contribute to a better use of recourses in society, while an inadequate competition leads to unnecessarily big costs. Since Sweden joined the European Union (EU) in 1995 the country has got a double competition law. The EU-law is not only indicative but also binding when it comes to the material part. A fundamental part of the competition law is the prohibition of restrictive cooperation. This part of the law is regulated in the Swedish Competition Act Chapter 2, Article 1 and in article 101.1 of the Lisbon Treaty. Such a restrictive cooperation means that two or more companies get together and for instance agree over prices or market sharing. The essay aims to investigate some problems that come up at the application of the law. Parallel conduct can have many reasons, but it can also indicate a concerted practice. The parallel behavior in itself is not improperly, it is only forbidden when it occurs because of a concerted practice. However, it is not always easy to detect this, and that is what the essay aims to investigate. As a result the essay finds that there are three cumulative requirements which state when a concerted practice is at hand. A universal principle is the principle that tells us that the one who states something also has to prove that statement. This is current also in the competition law, thought here is some confusion about the placement of the burden of proof. The essay wants to find out when the burden of proof is moved from the part which states that there is a law violation over to the companies. It is found that there are three different presumption rules that tell us when the companies get the burden of proof and what they then have to prove. Two of those rules concern concerted practice while one concerns agreements. At last three important Swedish cartel cases will be investigated. The aim is to find out how the Swedish judicial system monitors and interprets the EU-law. There is to be full convergence between the material laws. Marknadsdomstolen (MD) declares in one of the cases that even the procedural EU-law has to be followed, because otherwise also the material part would differ. MD makes use of the EU-law in all the investigated cases, however some gaps can be found and new issues arise.

This PhD is an examination into some of the costs and benefits arising from the application of the Fair Trading Act 1973 and the Competition Act 1980 to single firm anti-competitive conduct and complex monopoly conduct in the United Kingdom. The theoretical arguments advanced for the application of competition policy generally, along with the costs identified as likely to flow from this policy, are examined in an attempt to devise a criteria by which the application of competition policy in specific casesm ay be assessedE. nforcement activity of the Office of Fair Trading (OFT) and Monopolies and Mergers Commission (MMC) is examined to consider the extent to which previous actions have resulted in outcomes that may be identified or measured. Three specific investigations conducted between 1993 and 1997 are examined in some detail in ChaptersS , 6 and 7. Thesea rc related in Chapter 8 to more general experienceso f thosei nvolved repeatedlyw ith the operation of the regimei n the United Kingdom. The experiencesa nd evidence drawn together in these four chapters have not, to the author's knowledge, previously been so considered or set out. It is shown that the mechanism by which the policy is put into effect is heavily criticised, and that there are aspects of the procedure that impose burdens beyond those necessary to achieve the given result. In this context the experience of the American regime is used as a comparative example. The work concludes with a synthesis of the problems identified, and offers some possible solutions to the difficulties raised by the regime at the time of writing. Some consideration is taken into account of the future shape of the regime following the entry into force of the Competition Act 1998, although much of the work presented here remains valid to the operation of the new regime.

Dual distribution arrangements are arrangements that, for the purposes of competition law, can simultaneously be classified as vertical and horizontal. In terms of the Competition Act No, 89 of 1998 (“the Act”), the actions that can be taken, and the legal consequences of those actions, are vastly different depending on the type of relationship between the parties. Unlike in a conventional horizontal relationship, in a dual distribution arrangement the manufacturer creates competition with itself. This type of hybrid relationship has confused competition authorities, as it is difficult to decide whether the horizontal or vertical aspect should prevail in order to characterise the agreement. In some instances, competition authorities have elected to disregard the other elements of the relationship and prosecute parties for contraventions of the Act based purely on one dimension of the relationship. / Mini Dissertation (LLM)--University of Pretoria, 2019. / Mercantile Law / LLM / Unrestricted